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HomeMy WebLinkAboutZON-16-05 Grace At Caldwell DA (2)DEVELOPMENT AGREEMENT (GRACE AT CALDWELL) – PAGE 1 September 21, 2016 Grace At Caldwell Development Agreement (ZON-16-05) Recording requested by: City of Caldwell Community Development P.O. Box 1177 Caldwell, Idaho 83605 For Recording Purposes, Do Not Write Above This Line DEVELOPMENT AGREEMENT Grace At Caldwell Rezone This Development Agreement is made and entered into this ___ day of _______________, 2016, by and between the CITY OF CALDWELL, an Idaho municipal corporation of 411 Blaine Street, Caldwell, Idaho 83605 (“City” or “Caldwell”), 21ST & CHICAGO, LLC, an Idaho limited liability company of 350 S. 9th Street, STE 200, Boise, Idaho, 83702 (“Owner”) and GRACE AT CALDWELL, LLC, an Idaho limited liability company of 7116 McMullin Street, Boise, Idaho, 83709 (“Developer”). WHEREAS, Owner is the owner of record of certain real property (the “subject property”) located within the City limits and more particularly described as follows: See Exhibit “A”, a legal description, attached hereto and incorporated herein by this reference. WHEREAS, the Subject Property is the subject of an Application for Rezone submitted by Developer, identified as Application Number ZON-16-05; and WHEREAS, the property is currently zoned by the City of Caldwell as M-1 Light- Industrial; and WHEREAS, the property is currently classified as Commercial on the Caldwell Comprehensive Plan Map; and WHEREAS, the property is proposed to be rezoned to C-3 Service Commercial; and WHEREAS, it is the intent of this Development Agreement to protect the rights of Owner and Developer’s use and enjoyment of the Property, while at the same time limiting any adverse impacts resulting from the zoning of this property upon neighboring properties and the community, and ensuring that any future development of the property is in a manner consistent DEVELOPMENT AGREEMENT (GRACE AT CALDWELL) – PAGE 2 with Caldwell’s Comprehensive Plan and City Code; and WHEREAS, Caldwell, Owner, and Developer desire to set forth herein limitations and/or conditions upon the use and future development of the Property; WHEREAS, all capitalized terms in this Development Agreement not herein defined shall have those meanings designated in the Caldwell City Code, the Caldwell Zoning Ordinance, and the Caldwell Comprehensive Plan; WHEREAS, the new zoning designation requested by Developer and/or Owner with respect to the Subject Property, if granted by the City, will only be granted upon execution of this Development Agreement; NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, Developer, Owner and Caldwell agree as follows: ARTICLE I LEGAL AUTHORITY Caldwell will adopt an ordinance to rezone the Subject Property, subject to the terms and conditions of this Development Agreement. This Development Agreement shall be signed before an affirmative Order of Decision by the Mayor and City Council permitting the rezoning designation will be signed into effect by the Mayor. The ordinance will become effective after its passage, approval, and publication. ARTICLE II CONDITIONS OF THE REZONE The Subject Property shall be utilized in the fashion and according to the terms set forth in the development application ZON-16-05, to include the following conditions: 1. All future development applications for the Subject Property must meet all requirements of the Caldwell City Code in effect at the time of application. 2. If the City of Caldwell has established a design review process at the time of submittal of development application(s) for the subject property, the applicant will be required to go through the design review process. 3. In the event the Subject Property’s legal description is discovered to be in error, the Owner will be responsible for assuming the measures necessary to provide the City with an accurate legal description of the Subject Property. DEVELOPMENT AGREEMENT (GRACE AT CALDWELL) – PAGE 3 4. Planned and future development shall be consistent with the City of Caldwell Comprehensive Plan. 5. The development, design, and construction of Grace At Caldwell Assisted Living shall be in substantial compliance with the submitted site plan of Case Exhibit A-3. Any substantial deviations, as determined by the Planning & Zoning Director, from said Case File Exhibit A-3, shall require City Council approval, through a public hearing. 6. Dedicate 40 feet of right-of-way (minus existing) measured from the centerline of Chicago Street, abutting the site. The right-of-way shall be dedicated either at time of future development or within 60 days of a request from the city, whichever occurs earlier. 7. Construct Chicago Street abutting the site as a 24.5 foot one-half width minor arterial street section from centerline to back of curb with a 5-foot wide bike lane and shall feature standard vertical curb, 5-foot wide detached sidewalk, sub-base and asphalt paving, required storm water drainage facilities and street lights (see Caldwell Std. Dwg. 810-B). The developer may choose to construct a 7-foot wide attached sidewalk, in lieu of the 5-foot wide detached sidewalk. The roadway improvements shall be constructed either at time of future development or within 120 days of a request from the city, whichever occurs earlier. 8. Install a 20-foot wide landscape buffer along Chicago Street, abutting the site. The buffer shall contain a minimum of 11 Class II trees and 55 shrubs, along with vegetative ground cover (grass). The landscape improvements shall be completed either at time of future development or within 120 days of a request from the city, whichever occurs earlier. 9. One full access driveway shall be allowed from the site onto Chicago Street provided that it is a shared access with the property located directly north of the subject property. The driveway shall be located approximately 350 feet east of the intersection of Chicago Street and 21st Avenue so as to be in direct alignment with the existing driveway on the south side of Chicago Street. 10. All other driveway approaches must be approved by the City Engineer and shall be constructed as right-in/right-out only driveways. 11. As a material part of this Development Agreement, the Parties acknowledge that the rezoning of the property to C-3 (Service Commercial) shall have certain limitations as listed below in regards to the allowable uses on the property. Specifically, that all types of residential uses, including but not limited to, three-family dwellings, four-, five-, or six-family dwellings, and/or multi-family dwellings shall require approval through a special-use permit process and shall not be outright allowed. 13. In the event that any provisions of this agreement are more or less strict than the City Code or other law or regulations in place at the time of development, the more stringent DEVELOPMENT AGREEMENT (GRACE AT CALDWELL) – PAGE 4 requirements shall apply. 14. The above Development Agreement conditions are in addition to all other regulations provided for in the zoning district. ARTICLE III AFFIDAVIT OF PROPERTY OWNERS An affidavit of the owners of the Property agreeing to submit the Property to this Development Agreement and to the provisions set forth in Idaho Code Section 67-6511A is incorporated herein by reference. ARTICLE IV DEFAULT 4.1 In the event Developer and/or Owner fails to comply with the commitments set forth herein, within thirty (30) days of written notice of such failure from Caldwell, Caldwell shall have the right, without prejudice to any other rights or remedies, to cure such default or enjoin such violation and otherwise enforce the requirements contained in this Development Agreement. 4.2 If required to proceed in a court of law or equity to enforce any provision of this Development Agreement, the prevailing party shall be entitled to recover all direct out-of-pocket costs so incurred to cure or enjoin such default and to enforce the commitments contained in this Development Agreement, including attorneys’ fees and court costs as the Court shall determine. ARTICLE V UNENFORCEABLE PROVISIONS If any term, provision, commitment, or restriction of this Development Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument shall terminate and the zoning of the property shall revert to the city of Caldwell’s original land designations as set forth in the master plan, unless the portion of this instrument determined to be invalid or unenforceable is re-negotiated in good faith between the applicant (or other appropriate party) and Caldwell as an amendment to the Development processed in accordance with the notice and hearing provisions of Idaho Code Section 67-6509. ARTICLE VI ASSIGNMENT AND TRANSFER DEVELOPMENT AGREEMENT (GRACE AT CALDWELL) – PAGE 5 6.1 After its execution, the Development Agreement shall be recorded in the office of the County Recorder at the expense of the Developer and/or Owner. 6.2 Each commitment and the restriction on the development shall be a burden on the Subject Property, shall be appurtenant to and for the benefit of the Subject Property, adjacent property, and other residential property near the Subject Property, and shall run with the land. 6.3 This Development Agreement shall be binding on the Developer, and Owner, and their respective heirs, administrators, executors, agents, legal representatives, successors, and assigns. 6.4 Any new or subsequent owner of the Subject Property, or any portion thereof (including, without limitation, any owner who acquires its interest by foreclosure, trustee’s sale or otherwise), shall be liable for all commitments and other obligations arising under this Agreement with respect to the Subject Property or any portion thereof. ARTICLE VII GENERAL MATTERS 7.1 Amendments. Any alteration or change to this Development Agreement shall be made only after complying with the notice and hearing provisions of the Idaho Code Section 67- 6509. 7.2 Paragraph Headings. This Development Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. Titles and captions are for convenience only and shall not constitute a portion of this Development Agreement. As used in this Development Agreement, masculine, feminine, or neutral gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 7.3 Choice of Law. This Development Agreement shall be construed in accordance with the laws of the State of Idaho in effect at the time of the execution of this Development Agreement. Any action brought in connection with this Development Agreement shall be brought in a court of competent jurisdiction located in Canyon County, Idaho. 7.4 Notices. Any notice which a party may desire to give to another party must be in writing and may be given by personal deliver, by mailing the same by registered or certified mail, return receipt requested postage repaid, or by Federal Express or other reputable overnight delivery service to the party to whom the notice is directed at the address of such party set forth hereinabove, or such other addresses and to such other persons as the parties may hereafter designate. Any such notice shall be deemed given upon receipt If by personal delivery, forty- eight (48) hours after deposit in the United States mail, if send by mail pursuant to the foregoing, DEVELOPMENT AGREEMENT (GRACE AT CALDWELL) – PAGE 6 or twenty-four (24) hours after timely deposit with a reputable overnight delivery service. 7.5 Representation by Counsel. All parties hereto have either: (i) been represented by separate legal counsel; or (ii) have had the opportunity to be so represented. Thus, in all cases, the language herein shall be construed simply and in accordance with its fair meaning and not strictly for or against a party, regardless of which party prepared or caused the preparation of this Development Agreement. 7.6 Authority of Signatory. Each of the persons executing this Development Agreement on behalf of the parties hereto warrant his or her authority to do so and to bind said represented party. 7.7 Effective Date. This Development Agreement shall be effective after delivery to each of the parties hereto of a fully executed original of this Development Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the date and year set forth hereinabove. “CITY” THE CITY OF CALDWELL ______________________________________ By: GARRET NANCOLAS, Mayor Attest: _______________________________ DEBBIE GEYER, Caldwell City Clerk STATE OF IDAHO ) ) ss. COUNTY OF CANYON ) On this _____ day of _______________, 2016, before me the undersigned, a Notary Public in and for said State personally appeared GARRET NANCOLAS and DEBBIE GEYER, known or identified to me to be the Mayor and City Clerk, respectively, of the City of Caldwell, Idaho, an Idaho municipal corporation, that executed the said instrument, and acknowledged to me that such city executed the same. DEVELOPMENT AGREEMENT (GRACE AT CALDWELL) – PAGE 7 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. __________________________________ NOTARY PUBLIC FOR IDAHO Residence: _________________________ My Commission Expires: _____________ *SEAL DEVELOPMENT AGREEMENT (GRACE AT CALDWELL) – PAGE 8 “OWNER” 21ST & CHICAGO, LLC __________________________________________ By: ____________________________________ Its: ____________________________________ STATE OF _____________ ) ) ss. COUNTY OF ___________ ) On this _____ day of _______________, 2016, before me the undersigned, a Notary Public in and for said State personally appeared __________________________, known or identified to me to be the manager or a member of 21ST & CHICAGO, LLC, the limited liability company that executed the instrument, or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. __________________________________ NOTARY PUBLIC FOR _____________ Residence: _________________________ My Commission Expires: _____________ *SEAL DEVELOPMENT AGREEMENT (GRACE AT CALDWELL) – PAGE 9 “DEVELOPER” GRACE AT CALDWELL, LLC __________________________________________ By: ____________________________________ Its: ____________________________________ STATE OF _____________ ) ) ss. COUNTY OF ___________ ) On this _____ day of _______________, 2016, before me the undersigned, a Notary Public in and for said State personally appeared __________________________, known or identified to me to be the manager or a member of GRACE AT CALDWELL, LLC, the limited liability company that executed the instrument, or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. __________________________________ NOTARY PUBLIC FOR _____________ Residence: _________________________ My Commission Expires: _____________ *SEAL